Wirth Lang Company v. Meece

• Decision Date: 01 December 1925
• Citation: 211 Ky. 520
• Parties: Wirth Lang Company v. Meece, et al.
• Court: United States State Supreme Court — District of Kentucky

211 Ky. 520

Wirth Lang Company v. Meece, et al.

Court of Appeals of Kentucky. Common Pleas Branch, Third Division.

Decided December 1, 1925.

Master and Servant — Compensation for Amputation of Thumb and Metacarpal Bone Limited by Specific Provision for Such Injury. — Under Workmen's Compensation Act (Ky. Stats., section 4899), an employee whose thumb was amputated with its matacarpal bone following a period of 22 weeks of total disability, during which physician endeavored to save injured member, held entitled only to 65 per cent. of his average weekly earnings for a period not to exceed 70 weeks, and not to an additional allowance under section 4897 for disability up to time of the amputation; section 4899 expressly excluding all other compensation except such as is payable under sections 4883 and 4885.

Appeal from Jefferson Circuit Court

O'NEAL & O'NEAL for appellant.

FRANK COYLE and HUGGINS & OLDHAM for appellees.

OPINION OF THE COURT BY COMMISSIONER SANDIDGE.

Reversing.

This appeal involves a construction of section 4899, Kentucky Statutes, edition of 1922, one of the sections of our Workmen's Compensation Act, together with a construction of such other sections of that act as it may be found necessary to read in connection therewith. The facts are agreed. While employed by appellant appellee was accidentally injured in the course of his employment. They had accepted the provisions of the Workmen's Compensation Act. He was receiving an average wage of $25.00 per week. One of his thumbs was injured and the injury was such as to result in permanent disability from December 2, 1921, until May 15, 1922, a period of 22 weeks. During that time the physician treating him directed his efforts toward saving the injured member. On the latter date it became necessary to amputate and appellee's thumb and its metacarpal bone were removed.

The sole question presented by the appeal is whether in that state of case, under section 4899, appellee's compensation is limited to 65% of his average weekly earnings during 70 weeks within the minimum and maximum limits fixed, or whether under section 4897 he is entitled to 65% of his average weekly earnings within the limits fixed, as compensation for total disability for the time from the date of the injury, December 2, 1921, to the date of the amputation, May 15, 1922, less the first seven days thereof, and then under the provisions of section 4899 to 65% of his average weekly earnings within the limits fixed for a period of 70 weeks for the loss of his thumb and its metacarpal bone. Appellant takes the former view and appellee the latter.

The question is new in Kentucky, never having heretofore been presented to this court. It reaches us in the usual way, originating in a claim presented to, a finding and an award by the Workmen's Compensation Board, an appeal to the circuit court, and thence to this court. The question may be correctly determined only by ascertaining the intention of the legislature from a consideration of the language used to express that intention found in the portion of the compensation act relating to the question under consideration. Compensation for disabilities is provided for by sections 4897, 4898 and 4899, of the statutes. Section 4897 provides for compensation for total disability. It is decreed by the terms of that section that when the injury causes total disability for work, the employer, during the disability, except the first seven days, shall pay the employe so injured a weekly compensation equal to 65% of his average weekly earnings, but not more than $15.00 nor less than $5.00 per week, the payments to be made during the period of total disability but not longer than eight years after the date of the injury, nor in any case to exceed a maximum sum of $6,000.00. It further provides for cases in which total disability begins after a period of partial disability with which we are not here concerned. That section further declares certain injuries to constitute total, permanent disability with which we are not here concerned.

Section 4898 provides for temporary, partial disability with which we are not concerned. The loss of a thumb is a permanent disability, though only partial in its nature.

Section 4899, as relates to partial, permanent disability, occasioned by the loss of a thumb and its metacarpal bone, reads as follows:

"Partial permanent disability; compensation for specified injuries; other similar disabilities. — For injuries enumerated in the following schedule the employee shall receive in lieu of all other compensation, except such as may be payable under sections 4883 and 4885 hereof, a weekly compensation equal to sixty-five per cent (65%) of his average weekly earnings, but not less than five dollars ($5.00) per week nor exceeding twelve dollars ($12.00) per week for...